Appointment of former CJI as Governor of a State – Implications

A detailed analysis of the implications of the appointment of a retired Chief Justice of India to a political post of Governor of a State. Will it adversely impact the independence of judiciary which lies at the very foundation of a constitutional democracy and of the rule of law?

Appointment of former Chief Justice of India, Justice P. Sathasivam, as Governor of Kerala by the Union Government marks a new low in politicisation of judiciary. Even if it be presumed that there is no quid pro quo for this appointment, it is likely to open floodgates for similar other appointments in future, by way of inducement to others, some of which may then be due to some sort of quid pro quo, thereby seriously compromising the independence and impartiality of the judiciary. At the outset itself, a disclaimer is due. What is stated in the ensuing paragraphs is not with any specific individual in mind but is stated in general terms. Moreover, what is written here is only and only with the intention of making the judiciary stronger and not with the intention of maligning the judiciary. Only by accepting the existence of rot in the system we can improve it. By sweeping things under the carpet, no system can be improved.It is true that there is no restriction in the Constitution of India for appointing a retired judge of the Supreme Court to a constitutional post such as Governor of a State. The only restriction placed on a retired judge of the Supreme Court in respect of his future occupation is contained in clause (7) of Article 124 of the Constitution, which lays down as under:

“(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”

Thus, a retired judge of the Supreme Court cannot plead or act in any court or before any authority. This provision basically prohibits a retired judge from practicing law in any court or before any authority. There is no other restriction imposed in the Constitution on a future employment of a retired judge of the Supreme Court.

Contrast this with the restrictions imposed in the Constitution on certain other constitutional functionaries such as the Comptroller and Auditor-General of India (CAG), UPSC Members, etc., for their future employment. For example, clause (4) of Article 148 lays down as under:

“(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.”

Similarly, clause (a) of Article 319 of the Constitution lays down that on ceasing to hold office, the Chairman of the UPSC shall be ineligible for further employment either under the Government of India or under the Government of a State. This Article contains similar provisions for other members of the UPSC as also for Chairman and members of the State Public Service Commissions.

Likewise, similar restrictions have been placed even under some statutes on certain statutory functionaries such as the Central Vigilance Commissioner, Chairman of the Telecom Regulatory Authority of India (TRAI), etc. For example, Section 5(6) of the Central Vigilance Commission Act, 2003, mandates as under:

“(6) On ceasing to hold office, the Central Vigilance Commissioner and every other Vigilance Commissioner shall be ineligible for—

(a) any diplomatic assignment, appointment as administrator of a Union Territory and such other assignment or appointment which is required by law to be made by the President by warrant under his hand and seal;

(b) further employment to any office of profit under the Government of India or the Government of a State.

Similarly, Section 5(8) of the Telecom Regulatory Authority of India Act, 1997, laid down as under (before its amendment in 2014):

“(8) The Chairperson or any whole-time member ceasing to hold office as such, shall—

(a) be ineligible for further employment under the Central Government or any State Government; or

(b) not accept any commercial employment, for a period of one year from the date he ceases to hold such office: …”

It is pertinent to point out that, recently, in July 2014, the TRAI Act was amended to dilute the restrictions placed on the future employability of the Chairperson of TRAI, in order to facilitate the appointment of Shri Nripendra Misra (a former Chairperson of TRAI) as Principal Secretary to the Prime Minister Shri Narendra Modi. This amendment received the assent of the President on 17 July 2014. The amended provision is as under:

“(8) The Chairperson and the whole-time members shall not, for a period of two years from the date on which they cease to hold office as such, except with the previous approval of the Central Government, accept—

(a) any employment either under the Central Government or under any State Government; or

(b) any appointment in any company in the business of telecommunication services.”

In any case, the fact remains that restrictions on future employability of certain constitutional and statutory functionaries have been imposed, by provisions contained in the Constitution or the relevant statute, wherever such functionaries are expected to perform their functions in an independent and impartial manner.

In this background, it is rather surprising that the makers of the Constitution did not put similar restrictions on the future employability of the judges of the Supreme Court (or of the High Courts) under the Government. It can be nobody’s case that the CAG is expected to perform his duties independently but the judges of the Supreme Court are not so required. If the CVC or UPSC members or Chairperson of TRAI are required to be insulated from the executive in order to make their functioning independent and impartial by placing restrictions on their future employability, there is no reason why judges of the Supreme Court should not be insulated in a similar manner. In fact, the judges of the Supreme Court exercise immense powers under the Constitution that no other similar authority mentioned above can even think of. As a matter of fact, the decisions of these authorities, such as CAG, CVC, UPSC, etc., can also be subjected to scrutiny by the Supreme Court. The Supreme Court has the power, inter alia, to decide litigation in which Government is immensely interested and in which the stakes can be extremely high. It also decides litigation in which the ministers (and even the Prime Minister) may personally be involved. The Supreme Court decides matters relating to constitutional and/or legal validity of various laws, rules, regulations, orders as also the policies made by the Government which could have serious implications for the Government functioning. In fact, the Supreme Court also has the power to decide about the constitutional validity of the amendments to the Constitution carried out under Article 368 of the Constitution, in view of the doctrine of basic features of the Constitution laid down in the decision of a 13-Judges bench (the largest bench ever) of the Supreme Court in the case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1.

Thus, the judges of the Supreme Court exercise unparalleled powers under the Constitution. Their decisions can have very serious implications for the Government of the day or for the individual ministers or for the Prime Minister himself. The very existence of the rule of law may be shaken if the Supreme Court falters. The whole edifice of a constitutional democracy may crumble if the judiciary does not function properly or is not allowed to function properly. There have been umpteen number of cases that can easily demonstrate this fact, and I do not think there is any need to exemplify it.

This being the position, it is rather surprising that there are no restrictions placed in the Constitution on the future employability of judges of the Supreme Court under the Government after their retirement. Perhaps, the makers of the Constitution believed that the persons occupying the position of judges of the Supreme Court shall be persons of highest integrity, shall be beyond any type of influence by any person, and shall not get employed after the retirement in order to maintain the highest standards of probity in life. However, if this was the belief of the makers of the Constitution, then it is rather ironical that they have placed certain other restrictions on the future law practice by retired judges of the Supreme Court in clause (7) of Article 124, as mentioned above. In fact, it is inconceivable that a person who retires as a judge of the Supreme Court, which is the highest position in the judiciary, would even think of practising law in any Court (including the Supreme Court) or before any other authority. What then was the requirement or the intent behind placing explicit restrictions on their future law practice? And, if the makers of the Constitution did not trust the retired judges for giving up their future law practice after retirement, why did they trust them in respect of their future employability under the Government after retirement? Why did they not impose any restrictions on their future employment under the Government, as they did in respect of the CAG and Chairman / members of UPSC and State Public Service Commissions?

Be that as it may. The fact remains that ultimately the judges of the Supreme Court are also human beings, howsoever high pedestal may be accorded to them by equating them with the Lord. They are also likely to commit, and in my respectful submission some of them do in fact commit, the same mistakes and the same sins that are committed by us – the ordinary and humble human beings. Let us look at some illustrative examples.

The Chief Justice of India is the head of the judiciary in India and is the senior-most judge of the Supreme Court. Now look at this allegation levelled in the year 2009 by Shri Prashant Bhushan, a prominent advocate (see here), and supported by his father Shri Shanti Bhushan, former Law Minister (see here), alleging that half of the last 16 Chief Justices of India were corrupt. A list of these 16 last Chief Justices of India was given by them, and even an affidavit was filed in the Supreme Court, though they did not mention specifically as to who out of those 16 Chief Justices were corrupt. As if all this was not sufficient, recently on 24 August 2014 (see here), Justice Markandey Katju, who himself is a former judge of the Supreme Court, after referring to the aforesaid allegation made by Shri Shanti Bhushan, claimed as under:

“Even subsequent to the filing of this affidavit there have been Chief Justices of India, about whose integrity grave question marks were raised. Their names are well known, and need not be mentioned.”

And, Justice Katju goes on to narrate (see here) an incident about impropriety of a recently retired Chief Justice of India. It is not difficult to guess the name of the Chief Justice, and if you are still not able to guess it, read hereabout the allegations made by the sitting Chief Justice of Gujarat High Court against him and also read herethe response of that former Chief Justice of India against whom these allegations were made.

I may also point out that Shri S.P. Bharucha, a former Chief Justice of India, had reportedly stated that about 20% of the judges were corrupt (see hereand also here). During last about two months, Justice Katju has been targeting several recently retired Chief Justices of India, by their names, for various kinds of improprieties allegedly committed by them, including elevating or retaining corrupt judges, irregularities committed by the Collegium of the Supreme Court, etc. (see here, and here, and here, and here, and here, and hereand here; and also watch his video interviews – part 1 and part 2).

Allegations of serious corruption and misconduct were made also against Justice K.G. Balakrishnan, former Chief Justice of India (see here).

In another incident, eminent criminal lawyer Shri Ram Jethmalani made serious allegations of impropriety against Justice Tarun Chatterjee, a former judge of the Supreme Court, arguing that while heading a Bench hearing the Sohrabuddin fake encounter killing case, Justice Chatterjee should not have ordered the CBI probe since he himself was under the CBI scanner in the provident fund (PF) scam case (see here). It may be noted that Justice Tarun Chatterjee was named as one of the beneficiaries in the multi-crore Ghaziabad District Court PF scam, but the CBI subsequently gave him a clean chit.

One may also recall the impeachment of Justice V. Ramaswami, the then sitting judge of the Supreme Court, for charges of financial impropriety. The impeachment motion was placed in the Lok Sabha for debate and voting on 10 May 1993. Out of 401 members present in the Lok Sabha that day, 196 votes were cast in favour of the impeachment and no votes were cast against it, but there were 205 abstentions by members of the ruling Congress party and its allies. The impeachment motion which required not less than two third majority of the total number of members present in in the House and an absolute majority of its total membership, thus failed to pass. In this manner, the impeachment motion initiated on the charges of financial impropriety against the Supreme Court judge could not be passed only because of technical reasons of abstentions, and not because of merits of the charges which had been duly proved by the inquiry committee. Also, remember that not even a single vote was cast against the above impeachment motion.

As if allegations of financial impropriety were not enough, recently allegations of sexual advances have been made against two former judges of Supreme Court. Allegations of sexual harassment were made in 2013 by a law intern against Justice A.K. Ganguly, former judge of the Supreme Court, and a three-member panel appointed by the Supreme Court to enquire into these allegations, gave a prima facie finding on the intern’s allegations observing that Justice Ganguly had subjected the law intern to “unwelcome sexual behaviour” in December 2012 (see here). Similarly, recently, another former law intern made sexual harassment allegations against Justice Swatanter Kumar, former judge of the Supreme Court, and this matter is still pending before the courts (see here).

It may also be germane to note that a former Judge of Gujarat High Court and former Lokayukta of Gujarat state, Justice S.M. Soni, had written a 10-page letter to the then Chief Justice of India to keep Justice Aftab Alam, the then sitting judge of the Supreme Court, away from Gujarat cases, making detailed allegations of a communal mind-set against him (see here; this link also contains a copy of his letter). Since these serious allegations were made by a responsible person, i.e., a retired judge of a High Court, by way of a written complaint, it was expected that some sort of transparent enquiry will be conducted into the allegations, and if the allegations were found to be false, contempt proceedings would have been initiated against the retired judge himself making these allegations. However, I could not get any details from the media of any such enquiry conducted into these allegations or any action taken in this matter.

Another issue that raises serious questions of propriety, relates to the oft-repeated allegations of “uncle judges”. Close relatives of judges practice as advocates in the same court, though before a different bench, and it is widely suspected that they get direct or indirect help in the cases argued by them. This is, in fact, an allegation that is levelled against several judges, in the Supreme Court as well as in the high courts.

The seriousness of this problem can be gauged by the fact that in 2010, a Supreme Court bench comprising Justices Markandey Katju and Gyan Sudha Misra had famously quoted William Shakespeare to say “something is rotten” in the Allahabad High Court and that it needed to be cleaned up, and it further observed that (see here):

“We are sorry to say but a lot of complaints are coming about kith and kin practicing in the same court and within a few years of starting practice the sons or relations of these judges become multi-millionaires, have huge bank balances, luxurious cars, huge houses and enjoy a luxurious life”.

In fact, subsequently, when an application was moved to expunge the aforesaid “something is rotten” remarks, the Supreme Court refused to expunge them and upheld those remarks which said that something was “rotten” in the Allahabad High Court where the “uncle judges syndrome” was rampant and needed cleansing. Justice Katju is reported to have angrily told the counsel (see here):

“Do not tell all this. My family and I have more than 100 years of association with the Allahabad High Court. People know who is corrupt and who is honest.”

Again, details of the favours shown by the “uncle judges” to their relatives practising in the same courts are regularly and routinely discussed privately in the bar rooms, however, such details are generally not found fit for being discussed in the media due to absence of concrete evidence and perhaps due to the fear of contempt of court. But, merely because such details are not shared in media for general public consumption does not mean that this problem does not exist or that this problem would be only a miniscule one. As observed by Justice Katju, the problem of “uncle judges” is quite rampant and is a serious challenge to having a clean judiciary.

The point that I am trying to make is – if allegations of corruption can be made against such a large number of Chief Justices of India, who had the rare privilege of heading the Indian judiciary, and against other judges of the Supreme Court, then do we really need any further indicator about the trend in the higher judiciary? Please also note that these allegations are not made by lesser mortals. These allegations are made by those who have themselves had the privilege of serving as a judge of the Supreme Court or as a Law Minister of India or who are eminent and legendry lawyers, and hence can be said to be having personal knowledge of the incidents of corruption or impropriety in the higher judiciary.

Moreover, it may also be pertinent to point out that while a contempt petition came to be filed before the Supreme Court against Shri Prashant Bhushan for making the aforesaid allegation of half of the last 16 Chief Justices of India having been corrupt, the said contempt petition has not been taken to its logical end. This petition is pending for long in the Supreme Court and is not being heard now for quite some time. If the said allegations made by Shri Bhushan are false, what stops the Supreme Court from punishing him for contempt of court? It is worth mentioning that by an amendment made to Section 13 of the Contempt of Courts Act, 1971, justification by “truth” has now been made a valid defence to a charge of contempt of court, subject to certain conditions, as mentioned below:

“(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”

So, it is quite possible that if the aforesaid contempt petition is pursued further and details of “truth” of certain alleged corrupt activities of some former Chief Justices of India are furnished as a valid defence in such petition, it may perhaps lead to further deterioration in the image of the judiciary. In fact, the vehement manner in which the said contempt petition was defended, gives credence to that fear. This is an indication of the possibility of there being “truth” in such allegations.

Let me now come to the issue of explicit restrictions placed in Article 124(7) of the Constitution on the future law practice by retired judges of the Supreme Court. It is a common knowledge that many of the retired judges indulge in “chamber practice” by giving legal opinions to private entities at hefty fees, take up arbitration work, etc., though of course they cannot directly practice in a court or before any authority. A PIL was filed in the Delhi High Court in 2010 for interpretation of the aforesaid Article 124(7) of the Constitution alleging that former SC judges were violating the Constitution “in letter and spirit” by tendering legal opinions, which were being produced in various forums of adjudication to influence judgment (see here). I understand that this PIL is still pending and has not been decided so far.

That the contentions raised in the aforesaid PIL are substantially true, may get substantiated by what I have personally experienced some 20 years back when I was working in CBI on deputation from IPS. A criminal complaint was made by a private bank to the CBI with a request to register FIR (called “Regular Case”, or in short, “RC”, in CBI) and investigate the same. However, the CBI declined to do so, asking the bank to file the FIR with the regular state police. Thereafter, after a few days, a senior officer of the bank came to me with two “legal opinions” – one each from two retired Chief Justices of India (both of whom were prominent and legendary Chief Justices). Both these opinions consisted of about 6-7 lines each, expressing the “opinion” that FIR deserved to be registered by the CBI in the said matter. No detailed reasons were given for such opinion, they were merely personal and unreasoned opinions expressed by two former Chief Justices of India. Frankly speaking, I was quite puzzled and amused as to how could the bank secure such opinions from retired Chief Justices of India. Being in service and not being in law practice at that time, I was really unaware of such practices. Out of curiosity, I asked the bank Officer as to how could they get such opinions and, in fact, how could they even dare to approach retired Chief Justices for such opinion? “There is nothing unusual in this and such opinions are routinely given by the retired judges”, replied the banker, and he further informed that a professional fee of Rs. 5 lakh was paid to each of those judges for the said brief unreasoned opinions. It goes without saying that the head office of the CBI finally decided to register the FIR in the said matter in the light of the opinions of the said two retired Chief Justices of India.

It happened about 20 years back. You can well visualise the situation that may be existing today. The fact of the matter is – giving “legal opinions” by retired judges of the Supreme Court is a routine and is considered a normal practice, notwithstanding the legal bar contained in Article 124(7) of the Constitution. If any further proof is needed, it is provided by none other than Justice P. Sathasivam, former CJI, himself, who has reportedly informed the Indian Express newspaper on 4 September 2014 as under (see here):

“Since my retirement (on April 26), I have not accepted any arbitration or done any consultation work for corporates as some other former CJIs are doing. I have stayed in my village to tend to my small farm. I didn’t lobby for the post. There is nothing wrong in accepting it.”

Thus, Justice Sathasivam has unequivocally stated that some other former Chief Justices of India are accepting arbitration work and are doing consultation work for corporates. If I may be permitted to say so, in my respectful submission, the aforesaid statement of Justice Sathasivam appears to be like taking a “higher moral ground” by indicating that doing consultation and/or arbitration work for corporations (by some other former CJI’s) is “worse” than being a Governor of a State.

If any further proof is needed about the practice of “legal opinions” being given by retired judges, it comes from Shri Soli Sorabjee, former Attorney General of India, who observed with regard to the legal opinions given by retired judges as under (see here):

“What about retired Supreme Court judges giving legal opinions, which invariably are flaunted by parties before courts and judicial authorities? Judges of the Supreme Court and high court strongly disapprove of opinions of retired judges which are annexed to the pleadings or cited in argument and refuse to look at them. However, this cannot be said of tribunals and judicial authorities who are likely to be influenced by the opinion. …”.

As regards arbitration work done by retired judges of the Supreme Court, it may be pointed out that sometimes retired judges are appointed as arbitrators in various disputes (generally of commercial nature) by the Supreme Court itself in its written orders. In fact, it is a common knowledge that in the KG-D6 gas dispute between the Reliance Industries Ltd (RIL) and the Government of India, while RIL has appointed the former Chief Justice of India Shri S.P. Bharucha as an arbitrator on its behalf, the Government has appointed another former Chief Justice of India Shri V.N. Khare as an arbitrator on its behalf (see hereand here).

In addition, there are several commissions and tribunals which are required (sometimes, statutorily) to be headed by former judges of the Supreme Court. An illustrative and non-exhaustive list is: National Human Rights Commission (NHRC); Armed Forces Tribunal (AFT); Law Commission of India; Press Council of India; Telecom Disputes Settlement & Appellate Tribunal (TDSAT); National Consumer Disputes Redressal Commission (NCDRC); National Green Tribunal (NGT); Cauvery Water Disputes Tribunal; and, so on. The recently enacted Lokpal Act will also be giving post-retirement employment to more than one judges of the Supreme Court as Chairperson / members of Lokpal.

In fact, of the 21 judges of the Supreme Court who retired between the period from January 2008 to July 2012, as many as 18 of them got post-retirement jobs in different government commissions and tribunals (see hereor herefor details).

This being the factual position, when most of the retired judges of the Supreme Court are re-employed in one or the other commission or tribunal, the question of independence of judiciary has become more serious.

Whatever I have mentioned above is mainly on the basis of what has already been reported in the media. For every one story published in the media, there may be 10 stories that may be discussed in the privacy of drawing rooms or may be in the bar rooms of the courts, and there may be many more further stories which may not even be known to anyone except those involved. In fact, in the Supreme Court bar, several such issues of impropriety are privately discussed on daily basis, which are not published in media for public consumption in the absence of any concrete evidence and perhaps also due to the fear of the contempt of Court. The opening words of a famous song from the Hindi movie “Roti” (starring Rajesh Khanna) – “ye jo public hai ye sab jaanti hai…” (loosely translated as “it is public, it knows everything…”), perhaps aptly depict the scenario. However, most of such stories do not come out due to fear of contempt of court. A person who has heard some of these unverified stories, can only describe the situation as appalling and unbelievable. As I said earlier, we cannot improve a system unless we first accept the existence of deficiencies in the system. As serious stake-holders in the system, the advocates have a duty to improve the system, howsoever unpleasant the task may be.

Thus, it is not that there is nothing wrong in the higher judiciary. As mentioned above, the judges are also human beings. They come from the same Indian society, having been born on the same mother Earth and not coming from any different planet or even from a different country that may have better moral fabric. Moreover, they are not paid well if you compare them with some of the successful lawyers. They also have their own families and interact with the society on a regular basis. Thus, at least some of the judges may also make similar mistakes as other lesser mortals are expected to make.

In fact, notwithstanding what has been stated above, it is to the credit of the members of the higher judiciary that most of them have maintained highest standards of financial, intellectual and moral integrity. At the same time, there may be some judges who may fall prey to the temptations, pressures, and influences of the kinds that other ordinary human beings are likely to succumb to.

In their own wisdom, the makers of the Constitution decided that judges of the Supreme Court shall retire on the completion of 65 years of age. This is unlike what happens in the United States, where the judges are appointed for life and they never retire (of course, they can resign voluntarily as and when they wish). About 65 years back, when the Constitution was framed, perhaps the retirement age of 65 years might have broadly reflected (or even exceeded) the life expectancy in India. However, with the rising levels of life expectancy in India, this retirement age is not sufficient. If an advocate can continue successfully practice at the age of 90 years plus (e.g., Shri Ram Jethmalani, who can argue for the full day), there is no reason as to why judges of the Supreme Court cannot perform their duties efficiently well beyond their present retirement age of 65 years. Many of the judges, therefore, take up further employment after their retirement from the Supreme Court. That the Government is more than willing to accommodate the judges in post-retirement positions becomes clear from the provisions of various statutes that require a retired judge to head a particular tribunal or commission. However, the issue is not about an employment being given to a retired judge; the issue is whether such post-retirement employment results into compromising the independence of the judiciary. Of course, the best solution perhaps would be to raise the retirement age of a Supreme Court judge to about 75 years or even higher. However, there does not appear to be any possibility of such a measure in the near future. A proposed amendment increasing the retirement age of Supreme Court judges by merely 3 years has also not seen light of the day so far. Therefore, one has to look at the circumstances as they exist today.

The fact remains that a deficiency in the Constitution, left deliberately or ignorantly or innocuously by the makers of the Constitution, has given rise to scope for the politicians to exploit the cracks in the judiciary. Given the nature and extent of the powers enjoyed by a Supreme Court judge, and given the consequences that may follow for the Government (or for the senior functionaries of the Government) from an adverse exercise of such powers, it is but natural that the Government of the day always tries to allure the judges with post-retirement options. It is true that while many of the judges would never compromise with their duties as sitting judges of the Supreme Court irrespective of the prospects of post-retirement options offered to them, there may perhaps be some who may not have the strength to resist the temptation or the pressure or the influence. Contents of the foregoing paragraphs amply show that there are a few judges whose conduct may not be above board in this regard.

The problem is compounded further where a judge may perhaps favour a party to a dispute, while performing his duties, as a quid pro quo or at least with a view to not to displease the powers that be in order to secure post-retirement options. The post-retirement options may influence his decision to the detriment of the independence of judiciary.

I am not writing this as a figment of imagination. Let me quote certain observations from Shri Arun Jaitley, the present Finance and Defence Minister in the Union Government, who himself is an eminent lawyer. Of course, his observations being reproduced here relate to a period when he was in the opposition party, and I am sure he would have a different opinion today given the appointment of Shri P. Sathasivam, former CJI, as Governor of Kerala made by his Government.

Notice what Shri Arun Jaitley had said when he was the Leader of Opposition in the Rajya Sabha (see here):

“…this clamour for post retirement jobs is adversely affecting impartiality of the judiciary of the country and time has come that it should come to an end. …Now through judicial verdicts post retirement jobs are being created… pre retirement judges are influenced by a desire for a post retirement job”.

In the same meeting, Shri Nitin Gadkari, who was BJP President at that time, and who is also a senior Minister in the present Union Government, while endorsing the above views of Shri Arun Jaitley, observed as under (please see the same link):

“For two years after retirement there should be a gap (before appointment), because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise”.

Further, this is what Shri Arun Jaitley, as the then leader of opposition, stated in the Rajya Sabha in 2013 while speaking on the Judicial Appointments Commission Bill, 2013 (See here):

“…I think, we are going a bit too far now, in every legislation, in creating post-retirement avenues for Judges. … I think this whole temptation of continuing to occupy a Lutyens Bungalow is a very serious temptation. … The desire of a post-retirement job influences pre-retirement judgements. It is a threat to the independence of the Judiciary. Once it influences pre-retirement judgements, it adversely impacts the functioning of our Judiciary itself. …”.

Surely, Shri Arun Jaitley will have an entirely different opinion today in his capacity as a senior Minister in the Union Government. However, the fact remains that, as pointed out by Shri Jaitley, more and more statutory posts in the commissions and tribunals are being created exclusively for the retired judges of the Supreme Court and of High Courts. And, now Governor of a State is one more addition to the list, ironically added by the Government of which Shri Jaitley himself is a senior member.

To be fair, let me point out that there have been instances in the past when former CJI’s have taken up positions in the executive. Former CJI Justice M. Hidayatullah was the Vice President of India from 1979 to 1984, after having been elected with the consensus of all parties. Another CJI Justice Ranganath Mishra was appointed as a nominated member of the Rajya Sabha in 1998 and completed his term in 2004. Justice K.S. Hegde, a former judge of the Supreme Court, was elected to the Lok Sabha from Bangalore in the year 1997, and was Speaker of the Lok Sabha from 1977 to 1980. However, it is pertinent to point out that even before becoming a judge of the Supreme Court, Justice Hegde was elected to the Rajya Sabha in the year 1952 and continued to be Rajya Sabha member will 1957.

In fact, Justice Fathima Beevi, the first woman judge of the Supreme Court, was appointed as Governor of Tamil Nadu in the year 1997 and served as such till 2001. Likewise, Justice Sukhdev Singh Kang, former Chief Justice of Jammu and Kashmir High Court, was the Governor of Kerala from 1997 to 2002. Recently, Shri Vijay Bahuguna, who was a judge of the Allahabad High Court and the Bombay High Court, contested elections on the ticket of a political party (Congress) and even became Chief Minister of a State, namely Uttarakhand.

There have also been cases of retired judges taking up private employment. Former Chief Justice of India Shri S.H. Kapadia retired on 29 September 2012 and on 29 January 2013 he joined the board of directors of Bombay Stock Exchange (BSE) as a public interest director (PID), after being nominated to that post by the Securities and Exchange Board of India (SEBI) (see here). It is interesting to note here that as a judge of the Supreme Court, he regularly dealt with matters under SEBI Act, 1992, Companies Act, 1956, RBI Act, Mergers & Acquisitions, taxation matters, etc.

There have been cases of some other constitutional functionaries (who are required to be independent and impartial arbiters) also accepting positions after retirement. Shri M.S. Gill, who was the Chief Election Commissioner from 1996 to 2001, was appointed as the Minister of Youth Affairs and Sports in the Union Government by a Congress party. Shri T.N. Seshan, another former Chief Election Commissioner from 1991 to 1996, had contested for the post of President of India in 1997 as a Shiv Sena supported candidate, but lost this election to Shri K.R. Narayanan. Again, in 1999, Shri Seshan was a Congress-backed candidate for the Lok Sabha election from Gandhinagar against Shri L.K. Advani but suffered a heavy defeat.

So, what is new if a former CJI is now appointed as Governor of a State? Well, while there have been several instances when retired judges of the Supreme Court have been given post-retirement positions, but generally such positions were confined to tribunals and commissions, etc., which were generally related to the field of law. Governor of a State is an entirely different ball game. It is completely a political post. The way Governors are changed merely after a change of Government in New Delhi, and the way they are appointed on the basis of political affiliations, are no secrets. Recently, the way Governors of several states were made to resign and/or were transferred (to a place like Mizoram) to force their resignations, and the way new Governors were appointed in their place on the basis of political affiliations, clearly show as to how political the position of Governor has become today. The type of persons who have been appointed as Governors clearly shows that there is no requirement of any knowledge or expertise in law as a qualification for being made the Governor. Governors hold office during the pleasure of the President, which practically means the pleasure of the political party in power at the Centre. I need not elaborate further as to whether the office of Governor is befitting for a person of the stature of a former Chief Justice of India, who held a position independent of the executive, and who could not be removed from his post except by impeachment by Parliament in the manner laid down in the Constitution. The fact that till date, not even a single judge has been impeached since the Constitution came into existence in 1950, shows the kind of independence that has been guaranteed to a judge of the Supreme Court. Now, contrast it with the way a Governor can be removed from his post. A mere phone call from the Union Home Secretary may be sufficient for getting the resignation of a Governor. And, what kinds of duties are performed by a Governor? Is it not the practical experience that a Governor generally acts as advised by the political party in power at Centre? Will failure to fulfil the unwritten orders of the political party in power in Centre result into direct or indirect removal of the Governor? Notwithstanding a recent Constitution bench decision of the Supreme Court in the case of B.P. Singhal v. Union of India, (2010) 6 SCC 331 (ironically, Justice Sathasivam was a part of this Bench), the fact remains that a Governor can easily be removed from his post on political considerations, as the recent experience of removal of several Governors shows.

No doubt, there may be certain issues in the present case, such as who initiated the move to appoint Justice Sathasivam as Governor of Kerala? Was is the Central Government? Why should the Government do it when it has so many aspirants in its own party and moreover, why should it favour Justice Sathasivam in particular? Does it show some sort of quid pro quo or some sort of reward for the past services rendered as has been alleged by the opposition parties? Or else, did Justice Sathasivam himself initiate the move? If so, then does it show some sort of impropriety, even if he may now be a retired judge? Was there any mediator? If so, then again, who motivated such mediator and what is his interest in promoting the case of Justice Sathasivam? Or, whether the said appointment was done purely on merits in view of the great contribution made by Justice Sathasivam to the field of law?

However, I am not going into the details of these questions. For, there is a larger question. What message it contains for the sitting judges?

Thus, it may not be an issue of a serious concern if a particular former judge decides to join politics after his retirement or takes up a position that has political implications. In any case, as mentioned above, there is no bar under the Constitution, though there may be certain questions of propriety having moral implications.

But, what is of concern is as to what sort of impact it will have on the independence of judiciary and how it will impact the performance of duties by the sitting judges? Will it act as an inducement for the sitting judges too? Will some of their decisions be influenced? Will the carrot of such (or similar) post-retirement assignments have an adverse impact on the independence and impartiality of the judiciary? Will it be a retrograde step for the judiciary, and for the constitutional democracy, and also for the rule of law in the country?

At this juncture, I feel it necessary to refer to certain observations of the Supreme Court, relying upon dicta of the Privy Council. Referring to the observations of the Judicial Committee of the Privy Council in the case of Liyanage v. Queen, (1967) 1 AC 259, S.M. Sikri, C.J., observed in the case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1, as under:

“256. Their Lordships uttered a warning which must always be borne in dealing with constitutional cases: “what is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution”. This was in reply to the argument that the Legislature had no such general intention to absorb judicial powers and it had passed the legislation because it was beset by a grave situation and it took grave measures to deal with it, …”.

[Emphasis and underlining supplied.]

What these observations mean, in simple terms, is that sometimes a wrong act is justified on the grounds of serious circumstances then existing, however if such wrong act is permitted, it may become a precedent and may be repeated again and again in due course of time, and later, over a period of time such wrong act may be done even in less serious circumstances, and a time comes when bigger wrong acts are committed even in less serious circumstances, and so on. Therefore, it is always advisable not to permit the doing of a wrong thing in the very first instance itself, more so when it is connected with the serious issue of independence of judiciary. Any small compromise with the independence of judiciary, if ignored, may lead to more such compromises, thereby threatening the basic fabric of a constitutional democracy at the very foundation of which lies the independence of judiciary.

So, will the appointment of a former Chief Justice of India as a Governor of a State have an adverse impact on the independence of judiciary, either in the short run or over the longer term?

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, and is author of 3 law books. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. Email: info@tilakmarg.com

Issues are pertinent and of course, if this trend starts then judiciary could be compromised. It is the time that civil society should start speaking so that quid pro quo should be investigated thoroughly. In our country, we need to develop strong ethics policy defining conflict of interest and then develop institutions to see those are followed and institutionalized.

Saurabh Prakash

A very good article by all accounts. Well researched and well reasoned.

A.P.Vinod

Great article. Clearly a food for thought.

kavita

fantastic masterpiece article. When we will give freedom to our citizens ??

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